Wednesday, April 23, 2008

DADE CITY — A jailhouse lawyer won the biggest case of his life Tuesday, employing an impressive knowledge of capital law and the testimony of a neo-Nazi character witness to persuade a judge to spare him the death penalty.

Circuit Judge Lynn Tepper also had serious problems with prosecutors' argument in favor of the ultimate punishment, which she said "shocks the conscience of this court."

The case involved Lawrence Joey Smith, who was convicted of taking the orders to shoot and kill two teenagers over a botched drug deal in 1999.

One of them, Stephen Tuttle, survived. He was in court Tuesday and was unhappy with the life sentence Tepper imposed.

"I really believe he should have gotten the death penalty," Tuttle said. "But you know, I can go on with my life and he can't really."

Prosecutors said Smith and a drug dealer named Faunce Pearce were seeking vengeance against Tuttle, then 16, and his friend Robert Crawford, 17, after the teens lost $1,200 of Pearce's drug money.

Tuttle was shot in the head but survived when the bullet hit his fingers before lodging in his brain.

Crawford was shot next as he begged for his life.

Smith went to trial, was convicted of first-degree murder and first-degree attempted murder and sentenced to death in 2001. But his sentence was thrown out because the trial judge erred.

His second sentencing phase was in March. He was eligible for either life in prison or death.

Tepper had to weigh the aggravators — factors in the case that favor the death penalty — against mitigators that argue against it.

The jury voted 7-5 in favor of death; judges must give such recommendations "great weight" in sentencing.

Smith, 30, who educated himself in the law while in prison and represented himself in his appeal, pushed a long list of mitigators.

During the hearing in March, he put John Allen Ditullio on the stand to testify for him.

Ditullio belonged to a New Port Richey neo-Nazi sect when he was charged in a 2006 fatal stabbing. He met Smith in jail.

"Mr. Smith has made me re-evaluate my life and reconstruct my life in a positive way," Ditullio testified.

Tepper credited Smith with having a positive effect on other inmates, calling Ditullio "vastly transformed."

She also said that Smith has a good potential for rehabilitation, noting that in prison he has learned to "use his pen instead of his mouth."

The state presented three aggravating factors, including that Smith was also convicted of another violent felony: the attempted murder of Tuttle.

Tepper accepted that argument but rejected the others.

She said Smith had not been proved guilty of kidnapping Tuttle and Crawford. That was the work of Pearce. Prosecutors said Pearce masterminded the killings and Smith pulled the trigger.

But Tepper said the state had not proved who the shooter was. There were two other men with guns packed into the Trans-Am that September night in 1999, when they drove out to a dark stretch of State Road 54 in Land O'Lakes.

Those two testified that Smith shot Tuttle and Crawford, but the judge said they were not credible witnesses.

Assistant State Attorney Manny Garcia said after court Tuesday that the men's testimony about how Smith shot Crawford jibed with what a medical examiner said about Crawford's wounds.

Tepper also questioned why the other two were never charged with a crime, raising the issue of proportionality of punishments.

"Between Lawrence Joey Smith and the two uncharged gunmen, it is not possible to have proportionality if one defendant is put to death and two walk free without prosecution or sentence."

But Garcia told the Times: "If everybody had been charged, who's going to testify against them?"

The state has no avenue for appeal.

Pearce's conviction and death sentence were overturned in 2006 because of lawyer error. He awaits retrial on charges of first-degree murder and attempted murder. He will again face the death penalty.

Smith also holds out the possibility of future appeals, said Keith Hammond, the attorney appointed to assist him.

Smith himself found procedural errors in his original trial that he may still raise to challenge his conviction.

"He is phenomenal. He's not the same person he was," Hammond said. "He understands capital law as well as any capital attorney. He could teach it."

Molly Moorhead can be reached at moorhead@sptimes.com or (727) 869-6245.